PART 2 of 2
By
Timothy N. Baldwin, JD.
March 21, 2014
NewsWithViews.com
Tom’s reasons to oppose Article V simply do not outweigh the evidence and logic to the contrary. Of course, it is not easy to change one’s mind on such a serious topic; but as Hamilton stated, there comes a time when “caution and investigation” are taken too far, and it begins to defy logic and the necessity of political survival. This is where I see Article V opponents are now.
1. Tom claims that the “original document [Constitution] has been basically put in a museum…and forgotten."
This is a common mischaracterization of constitutional jurisprudence, but it is not accurate and displays an elementary view of constitutional law.
First, if you consider the Anti-Federalists’ views of the Constitution in 1787, the Constitution has been and is being applied the way it was intended; or at least, the way it’s natural progression permitted. So, I suppose Tom adopts the Federalist’ view of the Constitution, which in 1787 was the big-central-government model. Regardless, the reality is, most of the Constitution is still followed even according to “origina list” terms—the most questionable being the commerce power.
But here is the crucial fact. Amendments are followed more strictly than the original Constitution and prove effective. Acknowledging this fact must necessarily change his view of imposing Amendments. To deny this displays a prejudice against the effectiveness of Amendments.
So, let’s see how the Founders expected us to go from the 1787 Constitution to Amendments.
The Founders knew that words could not be so precisely framed that they would eliminate their ideas from developing over time. This is the nature of words and concepts. James Madison said in Federalist Paper 37,
Experience has instructed us that no skill in the science of government has yet been able to discriminate and define, with sufficient certainty, its three great provinces the legislative, executive, and judiciary; or even the privileges and powers of the different legislative branches. Questions daily occur in the course of practice, which prove the obscurity which reins in these subjects, and which puzzle the greatest adepts in political science…
The experience of ages, with the continued and combined labors of the most enlightened legislatures and jurists, has been equally unsuccessful in delineating the several objects and limits of different codes of laws and different tribunals of justice…
[N]o language is so copious as to supply words and phrases for every complex idea, or so correct as not to include many equivocally denoting different ideas. Hence it must happen that however accurately objects may be discriminated in themselves, and however accurately the discrimination may be considered, the definition of them may be rendered inaccurate by the inaccuracy of the terms in which it is delivered. And this unavoidable inaccuracy must be greater or less, according to the complexity and novelty of the objects defined.
This nature of words is an unavoidable aspect of human nature. In 1857, the United States Supreme Court demonstrated the nature of interpreting the Constitution this way:
Could it have been the purpose of Washington and his illustrious associates, by the use of ambiguous, equivocal, and expansive words, such as "rules," "regulation," "territory," to re-establish in the Constitution of their country that fort which had been prostrated amid the toils and with the sufferings and sacrifices of seven years of war? Are these words to be understood as the Norths, the Grenvilles, Hillsboroughs, Hutchinsons, and Dunmores -- in a word, as George III would have understood them -- or are we to look for their interpretation to Patrick Henry or Samuel Adams, to Jefferson, and Jay, and Dickinson; to the sage Franklin, or to Hamilton, who from his early manhood was engaged in combating British constructions of such words?Scott v. Sandford, 60 U.S. 393, 510-511, 15 L. Ed. 691, 744, 1856 U.S. LEXIS 472, 270, 19 HOW 393 (U.S. 1857).
Courts must make decisions, but the method of interpreting the Constitution is not so simple or fixed. For your study, see Benjamin Cardozo, “The Nature of the Judicial Process” (1921) (source). Look at how the first political parties formed because of their different methods of interpreting the Constitution. Jefferson formed the Republican-Democrat Party, which preferred strict construction; while Hamilton formed the Federalist Party, which preferred loose construction.
Courts are no different when it comes to understanding methods of interpretation, but their job is more complex because they have to, at times, apply seemingly conflicting or competing provisions of the same law. Hamilton described the difficulty of their job this way in Federalist Paper 78:
It will readily be conceived from the variety of controversies which grow out of the folly and wickedness of mankind, that the records of those [case] precedents must unavoidably swell to a very considerable bulk, and must demand long and laborious study to acquire a competent knowledge of them. Hence it is, that there can be but few men in the society who will have sufficient skill in the laws to qualify them for the stations of judges.
What is more, Madison recognized the difficult task of precisely marking the bounds between state and federal power. They called this division of sovereignty an EXPERIMENT, thus admitting they did not know how it would practically work and what experience would reveal over time. Madison said,
[W]hy is the experiment of an extended republic to be rejected, merely because it may comprise what is new? Is it not the glory of the people of America, that, whilst they have paid a decent regard to the opinions of former times and other nations, they have not suffered a blind veneration for antiquity, for custom, or for names, to overrule the suggestions of their own good sense, the knowledge of their own situation, and the lessons of their own experience? (Federalist Paper 14)
Within this great experiment, Madison explained how these lines of sovereignty would be left to the courts to expound as cases arose—much like common law’s development. He said in Federalist Paper 39,
in controversies relating to the boundary between the two jurisdictions [of the State and federal government], the tribunal which is ultimately to decide, is to be established under the general government…The decision is to be impartially made, according to the rules of the Constitution; and all the usual and most effectual precautions are taken to secure this impartiality. Some such tribunal is clearly essential to prevent an appeal to the sword and a dissolution of the compact.
The Federalists admitted they did not know how the Constitution, as a whole, would apply over time, and they used this reality to resist the Anti-Federalists’ attempts to amend the Constitution too soon. They argued that the States should wait for time and experience to reveal the Constitution’s effect so they could use that experience to judge what needed to be amended. Hamilton said,
The zeal for attempts to amend, prior to the establishment of the Constitution, must abate in every man who is ready to accede to the truth of the following observations of a writer equally solid and ingenious: “To balance a large state or society…on general laws, is a work of so great difficulty, that no human genius, however comprehensive, is able, by the mere dint of reason and reflection, to effect it. The judgments of many must unite in the work; experience must guide their labor; time must bring it to perfection, and the feeling of inconveniences must correct the mistakes which they INEVITABLY fall into in their first trials and experiments.” (Federalist Paper 85, quoting Hume)
Thus, Hamilton described the very reason why amendments are and become necessary. This was no mystery in 1789, and all of America accepted this fact.
Thererfore, Amendments are ratified with specific intent—the people having experienced the Constitution sufficiently to know what corrections are necessary.
States, thus, should ratify amendments to correct or modify previous experiences, decisions or precedents, with which they disagree. As Madison said in Federalist Paper 46, “the ultimate authority…resides in the people alone.” So, when courts interpret and apply Amendments—which are the latest expression of the “ultimate authority”—their interpretation is clearer and more certain.
This understanding of our constitutional system clearly demonstrates the reason why Article V is necessary and why arguing “just enforce it” misstates the necessity of correcting federal breaches.
2. Tom admits, “Something has to be done.”
Tom then reveals what he thinks is the political venue to accomplish “getting back to the Constitution.” He sates,
There are those who argue that we can't wait to try to elect the right kind of representatives in Congress and the White House. We have to take matters into our own hands immediately.
Tom means, as he further states, we “can wait to try to elect the right kind of representatives in Congress and the White House” and thus “we [do not] have to take matters into our own hands immediately.” Tom’s statement strikes me as very odd because he infers that “taking matters into our own hands” is not good and self-governing through an amendment process is bad.
Tom’s position contradicts the basis of our constitutional system, where the people are the final authority of what the Constitution means; and it discounts the reality that Article V is the most direct way for the people to inject their will into the Constitution, to correct breaches of it and set future’s course straight.
The Founders knew the scientific formulas relative to political action: “there cannot be an effect without a cause; that the means ought to be proportioned to the end” (Hamilton, Federalist Paper 31). Knowing this, they input an amendment process as the tool necessary for the States to control the federal government’s line of constitutional breaches; and they insisted that the States have a method of amending the Constitution without Congress’ input and control.
This is the epitome of self-government, and yes, this is the people taking matters into their hands to control Congress. But unlike Tom, I see that as a good thing.
3. Tom admits that proposed amendments to limit federal power would be good(just as any candid person will admit).
He said, “Few of us would disagree with most of these [amendment] ideas.” But Tom is stuck with the idea that Article V is or permits a constitutional convention. In short, Tom does not believe Article V prevents a “runaway” convention but believes the delegates to an Article V convention have the power to propose an entirely new constitution.
However, Tom does not describe the situation entirely. As I have written before (“Article V Opponents Chose Fear Over Hope” and “My Response to Unreasonable Article V Opponents”), assuming the convention “ran away” and proposed a new constitution to the States for ratification, this is an act of secession by the States that ratify the new constitution.
Will the federal government really allow the Blue States to secede from the Red States? The federal government has prevented secession since 1789. Will they allow it now? No. Too, do you think the Blue States want to secede from the Red States? No.
And assume the Blue States seceded and tried forcing the Red States to join the new union without their consent. Which States are better equipped to defend and enforce political action? The Red States that emphasize the importance of gun rights, individual sovereignty, economic prosperity, and vigorous patriotism; or the Blue States that emphasize gun control, social welfare, entitlement programs, and individual dependence?
Under conservative ideology, any separation between the Red and Blue States will benefit the Red States, not the Blue States. Be honest: the Blue States have their way in the current constitutional framework. They would be idiots to change that power structure. Too, do you really believe that all the Red States will ratify a socialist constitution? No! Therefore, in a “runaway” situation, the Blue States will go their separate way and the Red States can govern themselves without their influence.Good or bad?
Has Tom thought this through thoroughly? It doesn’t seem so to me. Regardless, to get around the need for an Article V convention, Tom asks,
What is the real issue here? What is the real reason why we have to even consider trying to redefine what the Founders meant our government to be?
Tom answers his own question, stating, “it’s all in the Constitution already.” This is where Tom misses the essence of constitutional law and why the Founders put Article V in the Constitution. I addressed this in Section 1 (“They don’t follow the Constitution anyway, so they won’t follow any amendments”) in Part 1, but consider the following addition to this topic.
The Constitution was written in a way that leaves room for interpretation. The thousands of court decisions regarding Congress’ Commerce Power show that they used legal reasoning. In truth, the federal courts have consistently interpreted the Commerce Power broadly. Consider this constitutional scholar’s study:
It has been said that the modern scope of Congress' commerce power is broad and "grants the federal government jurisdiction so long as it can show … that the regulated activity burdens, obstructs, or affects interstate commerce, however indirectly." As discussed below, such a view reflects the broad latitude given to Congress' commerce power when it was initially defined by Chief Justice Marshall over 170 years ago in Gibbons v. Ogden. Sheila A. Mikhail, 86 J. Crim. L. & Criminology 1493, 1496 (Summer, 1996) (emphasis added).
Again, this observation of the Constitution’s development comports to the Anti-Federalists’ view of the Constitution even before experience revealed its effect. This constitutional scholar further observes that from the beginning federal courts did not use the Tenth Amendment to narrowly interpret the Commerce Power. She notes,
In McCulloch (1819), the Court rejected the claim that the importance of broad state autonomy should motivate a narrow interpretation of the scope of federal power. Instead, the Court determined the proper scope of congressional power by considering what was necessary to enable the rational accomplishment of enumerated federal objectives. (Ibid.,1502)
Yet, Tom believes that it is simply impossible that the Commerce Power was not intended the way experience reveals it.
Again, I suppose Tom adopts the Federalist’ view of the Constitution. But if he does, he can’t use the strict limited-government approach of the Anti-Federalists because they predicted that the Constitution would become exactly what it is today. And what was the Anti-Federalist response to this?—amend the Constitution! It seems Tom wants to hold the Anti-Federalist view of the Constitution but refuses to follow their lead on remedying federal abuses.
4. Tom provides what he believes in the answer: education. He states,
I believe that if we don't change the atmosphere and mind set in the nation to one that supports the ideas behind our Constitution…The place to start that effort is by working to take back control of our local school systems, out of the clutches of the Federal Department of Education. Then, if we do first succeed in changing the mind-set of the nation to accept our ideas, a convention won't be needed.
Tom states once we have “changed the mind set of America,” we can fix the United States through electing the right people to change legislation. He states,
We will have the necessary support around the nation to elect the right kind or representatives to restore Constitutional law through their legislative action. That, I believe, is the real task that lies ahead of us.
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Tom then tries to make Article V appear as if it is too good to be true, stating, “there is no short cut or silver bullet around it.” In fact, the Founders intended Article V to correct breaches of the Constitution. Call it what you want: it works.
Conclusion
To me, Article V opponents have seriously lost the battle on the grounds of logic, experience, law, history and philosophy. It is time for the States to “take matters in their own hands” and quit waiting for Congress to fix itself.
You can order Liberty Defense League’s newly-released DVD on Article V (bulk discounts available), presented by Prof. Rob Natelson, foremost scholar on Article V scholarship. Go to www.stateconventionsolution.com or www.libertydefenseleague.com to order.
� 2014 Timothy N. Baldwin, JD - All Rights Reserved
Footnotes:
1.
I think Patrick Henry regretted not attending the constitutional convention
of 1787 as he was delegated to do; for certainly his oratory would have
had an impact on how the convention viewed the Constitution. Jefferson
couldn’t attend because he in France.
2.
However, that was Chuck’s position in 2009. Perhaps things have
changed a bit for Chuck Baldwin after he has thought through Article V,
studied the scholarship more, and considered our experiences and circumstances
more. I assume Chuck will assert his position on Article V in the near
future.
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Timothy Baldwin, born in 1979, is an attorney licensed to practice law in Montana (and formerly Florida) and handles a variety of cases, including constitutional, criminal, and civil. Baldwin graduated from the University of West Florida in 2001 with a Bachelor of Arts (BA) degree in English and Political Science. In 2004, Baldwin graduated from Cumberland School of Law at Samford University in Birmingham, AL with a Juris Doctorate (JD) degree. From there, Baldwin became an Assistant State Attorney in Florida. For 2 1/2 years, Baldwin prosecuted criminal actions and tried nearly 60 jury trials. In 2006, Baldwin started his private law practice and has maintained it since.
Baldwin is a published author, public speaker and student of political philosophy. Baldwin is the author of Freedom For A Change, Romans 13-The True Meaning of Submission, and To Keep or Not To Keep: Why Christians Should Not Give Up Their Guns–all of which are available for purchase through libertydefenseleague.com. Baldwin has also authored hundreds of political articles relative to liberty in the United States of America. Baldwin has been the guest of scores of radio shows and public events and continues to exposit principles which the people in America will need to determine its direction for the future.
Web site: libertydefenseleague.com
